Courts Again Shoot Down FCC For Ignoring The Law, Making Up Stuff

from the ill-communication dept

As the FCC has rushed to kiss up to telecom giants like AT&T and Verizon, it has enjoyed a fairly casual relationship with both the truth and the law. The agency’s repeal of net neutrality, for example, was hinged largely on the idea that the modest rules devastated sector investment, something that data repeatedly disproved. Other Pai FCC policies have equally leaned on flimsy and manufactured data plucked directly from the mouths of sector lobbyists. And while this casual relationship to the truth may play well to Pai’s allies, just making things up doesn’t work quite as well when it comes time to defend these policies in the courts.

Case in point: earlier this year the FCC tried to take away a modest $25 per month broadband stipend for tribal residents (you know, for freedom or whatever), while also banning smaller companies from receiving broadband subsidies (giants like AT&T and Verizon surely appreciated that). But while Pai’s office claimed screwing tribal residents would somehow massively spur broadband deployment, the courts shot that ruling down for being “arbitrary and capricious,” noting that Pai’s FCC failed completely to follow the law or to justify its policy with actual facts.

Fast forward to last week, and the FCC found itself again slapped down for playing fast and loose with factual reality. This time, the courts shot down a sizeable chunk of a recent proposal that gutted most state and local authority over the placement of cellular towers (and so-called “small cells,” which are smaller antenna usually affixed to city street lights to extend wireless coverage). While the FCC claimed that doing so would speed up broadband deployment, a coalition of local leaders stated the plan was little more than a giveaway to giants like AT&T and Verizon, who don’t like having to deal with pesky things like environmental reviews for cell tower placement.

And (and tell me if you’re noticing a trend here), the courts were quick to point out (pdf) that the Pai FCC proposal (again) ignored the law and didn’t justify the plan with, you know, facts.

Here’s the court’s comment on the FCC’s attempt to exclude towns and cities from having a say where small cells are placed on city infrastructure, for example:

“The Commission failed to justify its determination that it is not in the public interest to require review of small cell deployments. We therefore grant the petitions in part because the Order?s deregulation of small cells is arbitrary and capricious. The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells? footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission?s decades-long history of carefully tailored review, the FCC?s characterization of the Order as consistent with its longstanding policy was not ?logical and rational.”

That’s a polite way of saying the FCC didn’t support its arguments with evidence, or adhere to FCC policy or the law. The FCC keeps claiming that rubber stamping AT&T and Verizon’s every policy desire will somehow result in a massive boost in sector investment, but again, the data does not support those claims in any capacity:

“But FCC changes haven’t had the impact that Carr claims. Another FCC order last year eliminated $2 billion worth of local fees charged to carriers for deployment of small cells on public rights-of-way. Carr had claimed that this decision was needed to boost 5G construction, but Verizon said that the FCC decision did nothing to speed up its deployment. Cities are suing the FCC to overturn that order.”

Given the FCC keeps running into the same problem in the courts, all eyes are now on the ongoing lawsuit by 23 state AGs against the FCC for repealing net neutrality. A ruling in that case is expected any day now, and given the FCC’s tendency toward fantasy, many sector watchers are left feeling somewhat optimistic the repeal may not hold.

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Comments on “Courts Again Shoot Down FCC For Ignoring The Law, Making Up Stuff”

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22 Comments
TFG says:

Re: Re: Can someone prove..

Pai may know what the law actually says, but he also knows what’s important to him, which is nothing beyond his own personal gain. His own personal gain is tied to rubber-stamping as much of Telecom’s policy requests as he can get away with.

If it doesn’t stand up in court, he still did what they asked, it’s just that other people got in the way.

You watch – when he eventually leaves the FCC he’ll go on a Telecom payroll of some kind.

Anonymous Coward says:

given the bullshit that Pai and the FCC majority agents come out with and the seeming desire for courts, in the main, to do what is counter-beneficial to the public, i am dubious as to whether the repeal of net meutrality will be reversed. since Trump was somehow voted in as POTUS, everything has been for the benefit of companies and the detriment of the people. even the DoJ ignore the precedents about reducing competition is somehow better for the service concerned at the time! if that were the case, how come, worldwide, the exact opposite is true? the MORE competition, the better service and cheaper the price and those at the top of the tree in companies are much more likely to be held to account when their dictated policies go tits up! but of course, everywhere else is wrong and the USA, the only one thinking like this, is right! yeah, of course!

Anonymous Anonymous Coward (profile) says:

It's like light is shining on the darkness of Pai

"The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.""

Seems like someone’s gotten to the root of Pai’s modus operandi.

James Burkhardt (profile) says:

Re: While I'm at it

Unfortunately, if the judge hasn’t issued a ruling, there is no update. They went to court, arguments were made. The Judge isn’t going to talk about the case until the ruling is issued.

We have seen rulings take months when the judge is working to clearly document his process and lay the foundations so as to inform the innevitable appeals court of the legal wrangling. Unfortunately, we rarely can read into why delays like this occur. The judge might be trying to twist the law to fit a conclusion, or the judge might see long term consequences that they need to address, or might not like the conclusion they have reached. Or is just having difficulty making the ruling in general. Until a ruling is made, we don’t know anything more.

Michael (profile) says:

"Shoot Down FCC For Ignoring The Law, Making Up Stuff"

I don’t think that is fair. The FCC is not making this stuff up, they are simply re-publishing it. In fact, you could argue that the same concepts of section 230 should apply since the telecom industry is really where all of this comes from and the FCC is effectively just allowing them to post their own content.

Anonymous Coward says:

These are historical times

In the not-too-distant future historians will look back on this administration as one of the most corrupt in American history. Assuming it doesn’t somehow get worse, that is.

Is there any data on courts vs. the government by administration? I couldn’t find anything in a quick search but I’d be willing to bet that the Trump administration has seen more slap-downs in court than any other administration in modern history.

Anonymous Coward says:

Re: These are historical times

There is data on this, but in order to find and process it into something readable in one sitting, you’d need to pay PACER $.10 a page to view court records.

If you’re right, that’s going to be an exceedingly large number of documents and a prohibitively costly research effort. God bless America.

(As an added bonus, if you’re unwilling to provide the DoJ with your credit card information you can enjoy a 7-10 day waiting period to receive your access code in the mail!)

Qwertygiy says:

Re: Re:

There are significant partial records available at many other sources, such as justia. But the problem with partial records is that they are often, by nature, biased towards the present day; everything notable that is happening now can be recorded immediately, whereas the much larger collection of past notable events has to be collected from secondary sources.

There is certainly a large amount of legal conflict in the Trump era, but off the top of my head, Reagan in particular was kept quite busy in court on many issues. The Nixon administration, of course, was tainted with many difficulties.

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